JK 305 
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ONGRESS ) 

Session f 



SENATE 



Document 
No. 20 



ADDRESSES 



BY 



/ 



HON. GEORGE W. WICKERSHAM 

i " 

ATTORNEY GENERAL OF THE UNiTED STATES 

AT 

SYRACUSE, N. Y., JANUARY 19, 1911 
CLEVELAND, OHIO, MARCH 20, 1911 
PRINCETON, N. J., MAY 1, 1911 




PRESENTED BY MR. LODGE 
May 4, 1911. — Ordered to be printed 




'bSUi i 




- 













4^ 



CONCERNING CERTAIN ESSENTIALS OF 
REPUBLICAN GOVERNMENT. 



AN ADDRESS BEFORE THE NEW YORK STATE 

BAR ASSOCIATION AT SYRACUSE, N. Y., 

JANUARY 19, 1911. 



ADDRESS. 



Gentlemen of the New York State Bar Association : 

Every candid observer must admit that a higher standard of 
morality prevails to-day in both public and private life than ever 
before in our history, and a more rigid application of this standard 
by the people to the conduct of all concerned with our Govern- 
ment — National, State, and municipal. 

Abuse of the power of political organizations in the past has 
resulted in a popular distrust of them, and of those in authority in 
them, particularly of those wielding their centralized power to such 
an extent as to earn the characterization of " bosses." This distrust 
has produced a demand for a more direct participation by all the 
people, not only in party management, but in legislation; and a 
more immediate control over the administrative acts of executive 
officers and even of the conduct of judges. 

Admirable as is the awakened public sentiment which impels this 
movement toward a closer popular scrutiny of the details of govern- 
ment, it is accompanied with certain tendencies which awaken some 
concern in the minds of those who most highly applaud the senti- 
ment and most sincerely rejoice in the awakened vigilance of the 
people. 

One noticeable tendency is a distrust of the legislative branch of 
the Government, which has led to increased centralization of power 
and authority in the Executive, and a decided complacency in the 
face of new and unprecedented assumptions of power by the Execu- 
tive. This tendency is not at the present moment so strong as it 
has been during the past few years. 

Another, is an impatience of the independent position of the 
judiciary; an unwillingness to longer concede the need of an abso- 
lutely untrammeled body of judges freed from popular control, 
expected to decide controversies submitted to their judgment without 
regard to popular opinion or prejudice. 

And still another is a disposition to distrust the delegation of any 
power of selection of officers of the Government and the substitution 
of popular selection not only of officers themselves, but of the candi- 
dates from among whom such officials must be selected. 

These various tendencies are sufficiently noticeable throughout our 
country to give rise to the inquiry, whether there is not danger that 
the movement toward better government may ignore the constitu- 
tional channels into which it should be directed, and through which 
it may accomplish its laudable aims and legitimate purposes, with- 
out damage to the structure of our Government and left to itself 
sweep away great barriers of our institutions which have protected 
us against "all manner of political and social ills for a century and 
a quarter and have even survived the wrack of civil war. 

5 



6 ADDRESSES BY HON. GEORGE W. WICKERSHAM. 

A consideration, therefore, of the nature of the Government under 
which we live, of its characteristics and of its adequacy to meet the 
just demands of the people for improvement, would seem to be not 
untimely. 

The Constitution of the United States was adopted for the gov- 
ernment of a Union of 13 States and a population of 3,000,000 people. 
Aside from the first 10 amendments, adopted so nearly contempo- 
raneously with the Constitution as to make practically a part of its 
original, it was amended but twice before the Civil War, and the 
amendments following the Civil War were to embody the settlement 
of questions intentionally left unsettled in the beginning, and which 
only war could have settled. With these few modifications it has 
been found adequate to the government of a Union of 46 States and 
many territorial possessions and a population of 90,000,000 people. 
Yet dissatisfaction has arisen with certain results of government 
under it, and there are movements in not a few quarters toward the 
alteration of some of its fundamental provisions. What, therefore, 
is the nature of the Government it has constituted, and what are the 
distinguishing features which have so long commended it to the judg- 
ment of mankind ? 

The Government of the United States was described by Mr. Lin- 
coln as " a government of the people, by the people, and for the peo- 
ple." The people certainly are the source of all power in our Gov- 
ernments, State and National, but they exercise that power, in 
respect to matters of State -concern through the machinery provided 
by the constitutions of the respective States, and with respect to the 
powers delegated to the United States by the Constitution, through 
their representatives chosen, and the executive and judicial officers 
appointed, in accordance with the provisions of that instrument. 

The Constitution of the United States is generally understood to 
have established a form of representative republican government; 
a state, to quote the usual definition, " in which the sovereignty re- 
sides in the people and the administration is lodged in officers elected 
by and representing the people." Section 4 of Article IV of the 
Constitution provides that " The United States shall guarantee to 
every State in this Union a republican form of government," but it 
nowhere classifies the form of government established by the Consti- 
tution for the Union, nor defines what shall constitute that republican 
form of government which it guarantees to the States. 

The framers of the Constitution, as their writings show, were 
familiar with the nature and history of all forms of popular gov- 
ernment which had obtained in the past. 

Madison drew an accurate distinction between pure democracy and 
a republic in the tenth number of the Federalist, defining the former 
to be " a society consisting of a small number of citizens, who assem- 
ble and administer the government in person," and the latter to mean 
" a government in which the scheme of representation takes place." 
In a later number 1 of the Federalist [No. 39 (38)] he explained the 
idea more in detail : 

If we resort for a criterion to the different principles on which different forms 
of government are established, we may define a republic to be, or at least may 
bestow that name on, a government which derives all its powers directly or 
indirectly from the great body of the people, and is administered by persons 

1 The Federalist, Ford's Ed. Henry Holt & Co., 1898, pp. 245-246. 



ADDRESSES BY HON. GEORGE W. WICKERSHAM. 7 

holding their offices during pleasure, for a limited period, or during good be- 
havior. It is essential to such government that it be derived from the great 
body of the society, not from an inconsiderable proportion or a favored class 
of it; * * * It is sufficient for such a government that the persons ad- 
ministering it be appointed, either directly or indirectly, by the people ; and that 
they hold their appointments by either of the tenures just specified. * * * 

The proposed Constitution of the United States was commended 
by Madison to the approval of the States, as offering a government 
strictly republican in its character; no other form, in his opinion, 
being reconcilable with the genius of the people of America, with the 
fundamental principles of the Revolution, or "with that honorable 
determination which animates every votary of freedom to rest all our 
political experiments on the capacity of mankind for self-govern- 
ment." x 

Charles Pinckney recommended it to the State convention of South 
Carolina for the same reason. " We know," he said, " that all of the 
States have adhered in their forms to the republican principle, though 
they have differed widely in the mode best calculated to preserve it." 
Running over the provisions in the different States, he particularly 
commended the constitution of New York as being upon the whole 
the best in the Union, the executive being there elected by the great 
body of the people, holding his office for three years and being re- 
eligible, the appointment of the officers being taken from the legisla- 
ture and placed in a select council, and the legislative power being 
divided between two branches. The advantages of a republic, he 
pointed out — 

" are liberty, exemption from needless restrictions, equal laws, public spirit, 
averseness to war, frugality — above all, the opportunities afforded, to men of 
every description, of producing their abilities and counsels to public observation, 
and the exciting to the service of the Commonwealth the faculties of its best 
citizens." 

" The evils of a republic," he said, " are dissensions, tumults, faction, the at- 
tempts of ambitious citizens to possess power, the confusion and clamor which 
are the inevitable consequences of propounding questions of state to the dis- 
cussion of large popular assemblies, the delay and disclosure of the public 
councils, and too often the imbecility of the laws." 2 

" It can not be denied," said Daniel Webster in an address on the independ- 
ence of the judiciary delivered in 1829, " that one great object of written 
constitutions is to keep the departments of government as distinct as possible; 
and for this purpose to impose restraints designed to have that effect, and it 
is equally true that there is no department on which it is more necessary to 
impose restraints than the legislature. The tendency of things is almost 
always to augment the power of that department in its relation to the judi- 
ciary." 

Carefully framed in the light of such considerations as these, 
provision was made in the Constitution, to use the words of James 
Wilson : 

* * * as far as by human contrivance, it would seem, provision can 
be made in order to prevent or to check precipitancy and intemperance in the 
exercise of the all-important power of legislation. And yet, after all, there is 
perhaps too much reason to apprehend that the cacoethes legisferundi will be 
but too prevalent in both governments. This is an imperfection — in the present 
state of things the very best institutions have their imperfections — this is an 
imperfection incident to governments which are free. In such governments 
the people, at once subjects and sovereigns, are too often tempted to alleviate 
or to alter the restraints which they have imposed upon themselves. 3 * * * 

1 Federalist, No. 39 [38], Ford's Ed., p. 245. 

2 IV Elliot's Debates, Washington. 1836, pp. 328-329. 

3 Wilson's Works : Chicago, Callaghan & Co., 1896. vol. 2, p. 55. 



8 ADDRESSES BY HON. GEORGE W. WICKERSHAM. 

The distinguishing feature of the republican form of government 
Avas said by Chief Justice Fuller, in the case of In re Duncan (139 
IT. S., 449) , to be : 

« * * * rne right of the people to choose their own officers for govern- 
mental administration and pass their own laws in virtue of the legislative 
power reposed in representative bodies, whose legitimate acts may be said 
to be those of the people themselves ; but," he added, " while the people are 
thus the source of political power, their governments, National and State, 
have been limited by written constitutions, and they have themselves thereby 
set bounds to their own power, as against the sudden impulses of mere 
majorities." 

Daniel Webster, in his argument of the case of Luther v. Borden 
(7 Howard, 1), pointed out that as all power is originally from the 
people and they confer as much of it as they please, the exercise of 
legislative power and the other powers of government immediately 
by the people themselves is impracticable — > 

they must be exercised by representatives of the people; and what distin- 
guishes American governments as much as anything else from any govern- 
ments of ancient or of modern times is the marvelous felicity of their repre- 
sentative system. * * * The power is with the people, but they can not 
exercise it in masses or per capita ; they can only exercise it by their repre- 
sentatives. The whole system with us has been popular from the beginning. 1 

That the f ramers of the Constitution contemplated no specific form 
of republican government in framing the guaranty contained in the 
fourth article has been assumed by the Supreme Court, and here, 
as with respect to other parts of the instrument, resort must be had 
to evidence elsewhere to ascertain what was intended. 

" The guaranty necessarily implies a duty on the part of the States 
themselves to provide such a government," said Chief Justice Waite, 
in Minor v. Happersett (21 Wall., 162, 175). "All the States had 
governments when the Constitution was adopted. In all the people 
participated to some extent through their representatives, elected in 
the manner specially provided. These govermnents the Constitu- 
tion did not change. They were accepted precisely as they were, and 
it is therefore to be presumed that they were such as it was the duty 
of the States to provide. Thus we have unmistakable evidence of 
what was republican in form within the meaning of that term as 
employed in the Constitution." 

It was accordingly held in that case that as all of the citizens of 
the different States were not invested with the right of suffrage in 
their constitutions as they existed at the time of the adoption of the 
Federal Constitution, it could not be claimed that in the exercise of 
its duty to guarantee to each State a republican form of government 
Congress was obliged to see to it that there was universal suffrage in 
every State; that the right of citizenship did not necessarily imply 
the right of suffrage; and that a provision in a State constitution 
which confined the right of voting to male citizens of the United 
States was no violation of the Federal Constitution. Whether or not 
the government established in a State is republican within the mean- 
ing of the Constitution was held in Luther v. Borden (7 Howard, 
1) to be a question for the determination of the political departments 
of the Government, and that when that question has been decided 

1 Webster's Works, National Ed., Vol. XI, pp. 223, 224. 



ADDRESSES BY HON. GEORGE W. WICKERSHAM. 9 

the courts are bound to take notice of the decision and follow it. 
Commenting on that decision in the case of In re Duncan (139 U. S. y 
449, 461), Chief Justice Fuller referred to the wider sweep taken by 
Mr. Webster's argument in that case, containing, as he says it did : 

* * * a masterly statement of the American system of government, as 
recognizing that the people are the source of all political power, but that as. 
the exercise of governmental powers immediately by the people themselves is 
impracticable, they must be exercised by representatives of the people ; that the 
basis of representation is suffrage; that the right of suffrage must be pro- 
tective and its exercise prescribed by previous law, and the results ascertained 
by some certain rule ; that through its regulated exercise each man's power 
tells in the Constitution of the Government and in the enactment of laws ; that 
the people limit themselves in regard to the qualifications of electors and 
the qualifications of the elected, and to certain forms for the conduct of elec- 
tions; that our liberty is the liberty secured by the regular action of popular 
power, taking place and ascertained in accordance with legal and authentic 
modes; and that the Constitution and laws do not proceed on the ground of 
revolution or any right of revolution, but on the idea of results achieved by 
orderly action under the authority of existing governments, proceedings outside 
of which are not contemplated by our institutions. 

But if the Constitution did not define the essential characteristics 
of republican government, it may be taken as itself constituting an 
exposition of what in the views of its framers constituted such a 
government. It created a representative republican form of gov- 
ernment, a government of delegated powers distributed with exceed- 
ing care among three distinct coordinate branches of government. 

" The powers not delegated to the United States by the Constitu- 
tion, nor prohibited by it to the States," being, as declared in the 
tenth amendment, " reserved to the States respectively, or to the 
people." 

In broad comprehensive terms the Constitution specified what 
should be the powers of the respective departments of the Govern- 
ment — legislative, executive, and judicial — the framers of the instru- 
ment having in mind what Daniel Webster declared — 

that one great object of written constitutions is to keep the departments of 
government as distinct as possible; and for this purpose to impose restraints, 
designed to have that effect. 1 

The government so created was therefore a government of enumer- 
ated powers distributed among the respective departments with the 
express design of keeping, so far as possible, the powers of the different 
departments separate and distinct, and of preventing the one from 
encroaching on the other. This was apparent on the face of the 
instrument and there could have been no basis for any confusion of 
ideas, with respect to the subject but for the effect of the doctrine of 
implied powers — a very necessary principle of construction which at 
an early day was applied to the Constitution. 

In reaching his conclusion that Congress was empowered to create 
a national bank, Hamilton, in the opinion rendered by him to the 
President, February 23, 1791, conceded the proposition that Congress 
can in no case exercise any power not included in those enumerated 
in the Constitution, but maintained — 

that there are implied as well as express powers, and that the former are as 
effectually delegated as the latter. 

1 Webster's Works, Vol. V, p. 29. 



10 ADDRESSES BY HON. GEORGE W. WICKERSHAM. 

That in the exercise of the express power to make all laws — 

which shall be necessary and proper for carrying into execution the powers 
expressly granted — 

Congress could make all laws which were reasonably adapted to carry- 
out the power so expressly granted. The criterion of what is neces- 
sary or proper he said : 

* * * is the end, to which the measure relates as a mean. If the end be 
clearly comprehended within any of the specified powers, and if the measure 
have an obvious relation to that end, and is not forbidden by any particular 
provision of the Constitution, it may safely be deemed to come within the com- 
pass of the national authority. 1 

Answering the objection made by Eandolph that the grant of 
power to erect corporations implied by Hamilton from the powers 
expressed in the Constitution would beget a doctrine so indefinite as 
to grasp at every power, he said : 

To this objection an answer has already been given. It is this, that the 
doctrine is stated with this express qualification, that the right to erect cor- 
porations, does only extend to cases and objects within the sphere of the 
specified powers of the Government. 

A general legislative power implies a power to erect corporations in all cases. 
A particular legislative power implies authority to erect corporations in 
relation to cases arising under that power only. 2 

Eighteen years after this opinion was rendered, its reasoning was 
adopted by the Supreme Court of the United States and embodied 
by Chief Justice Marshall in his opinion in the great case of McCul- 
loch v. State of Maryland (4 Wheaton, 316) in the following ofl- 
quoted language: 

We admit, as all must admit, that the powers of the Government are limited, 
and that its limits are not to be transcended. But we think the sound con- 
struction of the Constitution must allow to the National Legislature that dis- 
cretion, with respect to the means by which the powers it confers are to be car- 
ried into execution, which will enable that body to perform the high duties 
assigned to it in the manner most beneficial to the people. Let the end be legiti- 
mate, let it be within the scope of the Constitution, and all means which are 
appropriate, which are plainly adapted to that end, which are not prohibited, 
but consist with the letter and spirit of the Constitution, are constitutional. 

In Keller v. United States (213 U. S., 138), Mr. Justice Brewer, 
writing the prevailing opinion of the court, in holding unconstitu- 
tional a provision in the alien immigration act of February 20, 1907, 
said : 

While the acts of Congress are to be liberally construed in order to enable 
it to carry into effect the powers conferred, it is equally true that prohibitions 
and limitations upon those powers should also be fairly and reasonably en- 
forced. (Fairbanks v. United States, 181 U. S., 283.) To exaggerate in the 
one direction and restrict in the other will tend to substitute one consolidated 
Government for the present Federal system. We should never forget the 
declaration in Texas v. White (7 Wall., 700, 725), that "the Constitution, in 
all its provisions, looks to an indestructible Union, composed of indestructible 
States." 

If these principles of construction are applicable in determining 
what powers are vested in the Federal Government by the Constitu- 
tion, they are equally applicable in determining the extent of the 
powers vested in any one of the departments of the Government. 

1 Select Documents of United States History : MacDonald, Macmillan & Co., 1889, 
pp. 82, 87. 

2 Select Documents, p. 91. ' 



ADDRESSES BY HON. GEORGE W. WICKERSHAM. 11 

The framers of the Constitution were establishing a government of 
nice distribution and balance of powers. They were impressed with 
the necessity of separating these powers in their exercise so that no 
one department should encroach upon the functions and powers of 
the other, save in those particulars where, by express provision, rep- 
resentatives of one department were required to cooperate with 
another in the exercise of an expressly delegated function. Such, for 
instance, was the provision respecting treaties, which were to be made 
by the President " by and with the advice and consent of the Senate ; " 
and the appointment of various officers of the Government upon the 
nomination of the President "by and with the advice and consent 
of the Senate" (Art. II, sec. 2) ; such also were the provisions for 
Executive cooperation with the legislative branch in the making of 
laws, provided in section 7 of Article I, by requiring the approval of 
a proposed law by the President, or its passage over his veto by the 
vote of two-thirds of each House. 

In the debates of the New York convention on the adoption of the 
Constitution, Eobert It. Livingston is reported to have said: 

If it was to enjoy legislative, judicial, and executive powers, an attention as 
well as to the facility of doing business as to the principles of freedom, called 
for a division of those powers. 1 

In the discussions in the conventions in the various States on the 
adoption of the Constitution, considerable objection to the Constitu- 
tion is recorded as having been made, "because the powers of the 
separate parts of this Government are not kept as distinct as they 
ought to be." 2 

In the Pennsylvania convention, however, James Wilson, after 
citing many instances in the constitutions of the individual States 
where those powers were blended to a greater extent than in the 
United States Constitution, said : 

* * * I only mention these to show, that, though this Constitution does 
not arrive at what is called perfection, yet it contains great improvements, and 
its powers are distributed with a degree of accuracy superior to what is termed 
accuracy in the particular States. 3 

In Osborn v. United States Bank (9 Wheat., 738, 818, 819), it was 
contended in support of the constitutionality of the clause in the 
bank's charter authorizing it to sue in the Federal courts — 

* * * that the legislative, executive, and judicial powers of every well- 
constructed government are coextensive with each other ; that is, they are 
potentially coextensive. The executive department may constitutionally execute 
every law which the legislature may constitutionally make, and the judicial 
department may receive from the legislature the power of construing every such 
law. All governments which are not extremely defective in their organization, 
must possess, within themselves, the means of expounding, as well as enforcing, 
their own laws. 

The Supreme Court accepted this contention as embodying the 
principle of government which the framers of the Constitution had in 
mind in drafting the Constitution, Chief Justice Marshall saying: 

* * * If we examine the Constitution of the United States, we find that 
its framers kept this great political principle in view. The second article 
vests the whole executive power in the President, and the third article declares 

1 Elliot's Debates, vol. 2, p. 215. 

2 II Elliot's Debates, 504 ; III id., 494, 27, 116, 117. 

3 Id., 505. 



12 ADDRESSES BY HON. GEORGE W. WICKERSHAM. 

"that the judicial power shall extend to all cases in law and equity arising 
under this Constitution, the laws of the United States, and treaties made or 
which shall be made under their authority." This clause enables the judicial 
department to receive jurisdiction to the full extent of the Constitution, laws, 
and treaties of the United States when any question respecting them shall 
assume such a form that the judicial power is capable of acting on it. That 
power is capable of acting only when the subject. is submitted to it by a party 
who asserts his rights in the form prescribed by law. It then becomes a case, 
and the Constitution declares that the judicial power shall extend to all cases 
arising under the Constitution, laws, and treaties of the United States. (9 
Wheat., 819.) 

That these powers contained nothing of indefiniteness in them ; 
that they are only what is expressly granted by the Constitution or 
implied therefrom as necessary and proper to the execution of the 
expressly granted powers; that there is no reservoir from which 
power may be drawn by any one of the branches of the Government, 
excepting the Constitution itself, is established by an abundance of 
authority. 

Considering in their order the decisions of the Supreme Court 
respecting the powers of the different branches of the Government, 
let us turn first to those- — 

I. CONCERNING THE LEGISLATIVE BRANCH. 

" In the Constitution," said Justice Brewer, in delivering the opin- 
ion of the court in Kansas v. Colorado (206 U. S., 46, 81), " are pro- 
visions in separate articles for the three great departments of govern- 
ment — legislative, executive, and judicial. But there is this signifi- 
cant difference in the grants of powers to these departments: The 
first article, treating of legislative powers, does not make a general 
grant of legislative power. It reads : 'Article I, section 1. All legis- 
lative powers herein granted shall be vested in a Congress,' etc. ; and 
then in Article VIII mentions and defines the legislative powers that 
are granted. By reason of the fact that there is no general grant of 
legislative power, it has become an accepted constitutional rule that 
this is a Government of enumerated powers." 

George Nicholas, in the Virginia convention on the adoption of the 
Constitution, says: 

The gentleman has adverted to what he calls the sweeping clause, etc., andi 
represents it as replete with great dangers. This dreaded clause runs in the 
following words : " To make all laws which shall be necessary and proper for 
carrying into execution the foregoing powers and all other powers vested by 
this Constitution in the Government of the United States, or in any department 
or officer thereof." The committee will perceive that the Constitution had 
enumerated all the powers which the General Government should have, but did 
not say how they were to be exercised. It therefore, in this clause, tells how 
they shall be exercised. Does this give any new power? I say not. Suppose it 
had been inserted, at the end of every power, that they should have power to 
make laws to carry that power into execution ; would this have increased their 
powers? If, therefore, it could not have increased their powers if placed at 
the end of each power, it can not increase them at the end of all. This clause 
only enables them to carry into execution the powers given to them, but gives 
them no additional power. 1 

To the same effect seems to be the language of Chief Justice Mar- 
shall in McCulloch v. Maryland (4 Wheat., 316, 422) : 

* * * The power to " make all needful rules and regulations respecting 
the territory or other property belonging to the United States " is not more 

1 lll Elliot's Debates, 245, 246. 



ADDRESSES BY HON. GEOEGE W. WICKEBSHAM. 13 

comprehensive than the power " to make all laws which shall be necessary and 
proper for carrying into execution " the powers of the Government. 

Carefully guarded, therefore, within the limits of legislative power 
granted, the machinery of legislation by Congress is provided in the 
Constitution. Revenue bills must originate in the popular branch — 
the House of Representatives. All laws must pass both Houses and 
be approved by the President, or passed over his veto by a two-thirds 
vote in each House. Thus sudden and ill-considered changes in the 
law were guarded against and the invaluable system of formulation 
and discussion in committee and debate in each House was established. 
If Congress should exceed its powers in passing laws not authorized 
by the Constitution, the independent judiciary was clothed with 
authority to apply a correction by declaring the law unconstitutional 
and void when in any case arising under it the subject should be 
brought before the courts. 

II. CONCERNING THE JUDICIAL BRANCH. 

The independence of the judiciary was, in the eyes of the framers 
of the Constitution, the cornerstone of the constitutional arch. All 
students of our system have united in extolling this as the most 
important, as it is the unique, feature of our Government ; that which 
has preserved us from the fate of the republics of the past. It is the 
balance wheel of the Government. So jealous of this were the 
makers of the Constitution that they provided that the judges should 
hold office during good behavior and that their compensation should 
not be diminished during their term of office. To insure the selection 
of men competent to the high duties and grave responsibilities de- 
volved upon the judges, the Constitution provided that they should 
be selected by the President, with the consent of the Senate, not left 
to the scramble of popular nomination and election. The result has 
amply justified the wisdom of the fathers. No other branch of our 
Government has, on the whole, discharged its duties with so little 
popular dissatisfaction. Separated as they are by the nature of 
their appointment and tenure of office, as well as by the character of 
their duties, underpaid though they have always been, the judges of 
the United States have held the balance of power between the States 
and the Union and between the different branches of the Government 
with high integrity and great learning. Seldom, indeed, has the 
voice of the demagogue been heard to assail them, and never has even 
a suspicion of corruption sullied the ermine of the Supreme Court. 

In the various State conventions on the adoption of the Constitu- 
tion there was much opposition to the breadth of the judicial power 
conferred by the Constitution, but there was little difference of 
opinion as to the scope of the judicial power conferred. It was con- 
ceded by all that in the judicial department the General Govern- 
ment had this preeminent advantage— that " all disputes relative to 
jurisdiction must be decided in a Federal court," 1 But it was 
claimed my those favoring the adoption of the Constitution that 
the Federal courts would not abuse this jurisdiction by broadening 
the powers conferred upon the General Government, but would 

ill Elliot's Debates, 332, 333, 489; III id., 532, 551, 552, 554; IV id., 160. 



14 ADDRESSES BY HON. GEORGE W. WICKERSHAM. 

merely make use of this jurisdiction to render effective the powers 
conferred. 1 

In the Pennsylvania convention James Wilson said, concerning the 
judicial power of the United States : 

It is again alleged, against .this system, that the powers of the judges are 
too extensive; but I will not trouble you, sir, with a repetition of what I had 
the honor of delivering the other day. I hope the result of those arguments 
gave satisfaction and proved that the judicial were commensurate with the 
legislative powers; that they went no farther, and that they ought to go so far. 

The laws of Congress being made for tbe Union, no particular State can be 
alone affected ; and as they are to provide for the general purposes of the 
Union, so ought they to have the means of making the provisions effectual over 
all that country included within the Union. 2 

Similar views were expressed by Madison and John Marshall in 
the Virginia convention, 3 and by Edmund Pendleton. 4 

In view of the prevailing conception of government at the time 
the Constitution was adopted, and in view of the provisions of that 
instrument, it would seem that Mr. Justice Brewer, in his opinion in 
the case of Kansas r. Colorado (206 U. S., 46, 81, 82, 83), somewhat 
overstated the extent of judicial power under the Constitution. There 
is nothing in the judgment rendered in that case which is in any way 
inconsistent with the proposition that the legislative, the executive, 
and the judicial powers of the United States Government are in 
general coextensive and coordinate. The court was there consider- 
ing its original jurisdiction in a suit between States, and the fact 
that its jurisdiction in respect to such suits exists by virtue of the 
provisions of section 2 of Article II, declaring that the judicial power 
shall extend " to controversies between two States " and has nothing 
to do with the power of Congress to legislate in respect to the States, 
is apparent from the face of the Constitution. 

That case was an original suit by the State of Kansas to restrain 
the State of Colorado from diverting the waters of the Arkansas 
Eiver for the irrigation of lands in Colorado. The United States 
sought to intervene on the ground that it had an inherent sovereignty 
to secure to the people of the several States the use of interstate 
streams for other purposes than navigation, etc., i. e., to carry out a 
national policy of irrigation. So far as the United States was con- 
cerned, the Supreme Court dismissed the suit on the ground that no 
such duties were imposed upon the United States by the Constitution. 

Concerning the jurisdiction of the court to entertain the suit 
brought, Mr. Justice Brewer, after using the language above quoted 
respecting the limitations on the legislative department, said : 

On the other hand, in Article III, which treats of the judicial department — 
and this is important for our present consideration — we find that section 1 reads 
that " the judicial power of the United States shall be vested in one Supreme 
Court and in such inferior courts as the Congress may from time to time ordain 
and establish." By this is granted the entire judicial power of the Nation. 
Section 2, which provides that " the judicial power shall extend to all cases 
in law and equity arising under this Constitution, the laws of the United States," 
etc., is not a limitation nor an enumeration. It is a definite declaration, a pro- 
vision that the judicial power shall extend to — that is, shall include — the sev- 
eral matters particularly mentioned, leaving unrestricted the general grant of 
the entire judicial power. There may be, of course, limitations on that grant of 



1 III Elliot's Debates, 553; IV id., 158. 3 Id., pp. 532. 533. 

2 II Elliot's Debates, p. 515. 4 Id., 517, 518. 



ADDRESSES BY HON. GEORGE W. WICKERSHAM. 15 

power, but if there are any they must be expressed, for otherwise the general 
grant would vest in the courts all the judicial power which the new Nation 
was capable of exercising. 

Speaking generally, it may be observed that the judicial power of a nation 
extends to all controversies justiciable in their nature, the parties to which or 
the property involved in which may be reached by judicial process, and when 
the judicial power of the United States was vested in the Supreme and other 
courts all the judicial power which the Nation was capable of exercising was 
vested in those tribunals, and unless there be some limitatious expressed in the 
Constitution it must be held to embrace all controversies of a justiciable nature 
arising within the territorial limits of the Nation, no matter who may be the 
parties thereto. This general truth is not inconsistent with the decisions that 
no suit or action can be maintained against the Nation in any of its courts 
without its consent, for they only recognize the obvious truth that a nation is 
not without its consent subject to the controlling action of any of its instru- 
mentalities or agencies. The creature can not rule the creator. 

These considerations lead to the propositions that when a legislative power 
is claimed for the National Government the question is whether that power is 
one of those granted by the Constitution, either in terms or by necessary impli- 
cation, whereas in respect to judicial functions the question is whether there be 
any limitations expressed in the Constitution on the general grant of national 
power (pp. 82, 83, 84). 

If this language be taken as meaning more than that under the 
constitutional declaration that the judicial power shall extend to 
controversies between two States, and that in all cases in which a 
State shall be a party the Supreme Court shall have original juris- 
diction, that court may take cognizance of all controversies between 
States which are justiciable in their nature, it is at variance with the 
unanimous opinion of the members of the Constitutional Convention, 
whose observations on the subject have been recorded, including Pres- 
ident Madison and Chief Justice Marshall, and even Justice Wilson, 
and with the views of Chief Justice Marshall expressed in Osborn v. 
The Bank, above quoted. It is at variance also with the views of the 
great Chief Justice, expressed in Cohens v. Virginia (6 Wheat, 364, 
378, 379), in the following language: 

******* 

The second section of the third article of the Constitution defines the extent 
of the judicial power of the United States. Jurisdiction is given to the courts 
of the Union in two classes of cases. In the first their jurisdiction depends on 
the character of the cause, whoever may be the parties. This class comprehends 
" all cases in law and equity arising under this Constitution, the laws of the 
United States, and treaties made, or which shall be made, under their author- 
ity." This clause extends the jurisdiction of the court to all the cases de- 
scribed, without making in its terms any exception whatever and without any 
regard to the condition of the party. If there be any exception, it is to be 
implied, against the express words of the article. In the second class the juris- 
diction depends entirely on the character of the parties. In this are compre- 
hended " controversies between two or more States, between a State and citizens 
of another State," and " between a State and foreign states, citizens, or sub- 
jects." If these be the parties, it is entirely unimportant what may be the 
subject of the controversy. Be it what it may, these parties have a constitu- 
tional right to come into the courts of the Union. 

* * * * * * * ' 

The language of Justice Brewer quoted above was not essential 
to the decision of the case, and even although the obiter dicta of that 
great jurist have almost the authority of decision, yet in this instance 
a literal interpretation of the views he expressed seem to be not only 
contrary to the current of authority but at variance with the whole 
scheme of the delegation of power in the Constitution. 



16 ADDRESSES BY HON. GEORGE W. WICKERSHAM. 

In Oceanic Navigation Co. v. Stranahan (214 U. S., 320), the 
present Chief Justice vigorously opposed any unwarranted extension 
of the powers of the Federal judiciary. 

The contention was there made that a penalty may not be author- 
ized by Congress for an act prohibited by law and its collection 
committed to an administrative officer without the necessity of resort- 
ing to judicial power. 

Justice White said: 

But the proposition magnifies the judicial to the detriment of all other depart- 
ments of the Government, disregards many previous adjudications of this court, 
and ignores practices often manifested and hitherto deemed to be free from 
any possible constitutional question. * * * 

The suggestion that, if this view be applied, grave abuses may arise from the 
mistaken or wrongful exertion by the legislative department of its authority but 
intimates that if the legislative power be permitted its full sway within its con- 
stitutional sphere, harm and wrong will follow, and therefore it behooves the 
judiciary to apply a corrective by exceeding its own authority. But as was 
pointed out in Cary v. Curtis (3 How., 236), and as has been often since empha- 
sized by this court (McCray v. United States, 195 U. S., 27), the proposition but 
mistakenly assumes that the courts can alone be safely intrusted with power, 
and that hence it is their duty to unlawfully exercise prerogatives which they 
have no right to exert, upon the assumption that wrong must be done to pre- 
vent wrong being accomplished. (214 IT. S., pp. 338-340.) 

The same reasoning applies with equal force to the unwarranted 
assertion of executive power, often sought to be justified by precisely 
the considerations on which the exercise of judicial power was predi- 
cated in the instance under consideration. 

And this leads, naturally to a consideration of — 

III. THE POWERS OF THE EXECUTIVE. 

Article II declares : " The executive power shall be vested in a 
President of the United States of America ; " Article III, that " The 
judicial power of the United States shall be vested in one Supreme 
Court and in such inferior courts as the Congress may from time to 
time ordain and establish." As Mr. Justice Brewer, in Kansas v. 
Colorado (supra), contended that by the words of Article III the 
entire judicial power of the Nation was granted; that the judicial 
power of a nation extends to all controversies justiciable in their 
nature, the parties to which, or the property involved in which, may be 
reached by judicial process; and that there are no limitations on such 
power unless expressed in the Constitution, so it has been contended 
in recent times that by Article II the executive power of the Nation 
was vested in the President, that it embraces all such power as the 
English King was accustomed to exercise prior to our independence, 
and that it was only limited by the express provisions of the Con- 
stitution itself. This doctrine is based in part upon the views 
advanced by James Wilson that " the United States have general 
rights, general powers, and general obligations not derived from any 
particular States, nor from all the particular States taken separately, 
but resulting from the union of the whole." 

This argument ignores the tenth amendment and is at variance 
with an unbroken line of decisions by the Supreme Court. 

It is indeed a strange theory of executive power to evolve from 
an instrument creating a government of delegated powers, shrewdly 
designed for the purpose of protecting the liberties of the people ancl 



ADDRESSES BY HON. GEOEGE W. WICKEESHAM. 17 

framed by men who were familiar with the aggressions of the Eng- 
lish King, and who in the Declaration of Independence had so elo- 
quently catalogued the history of his repeated injuries and usurpa- 
tions — " all having in direct object the establishment of an absolute 
tyranny over these States." 

This much is certain, that neither the framers of the Constitution 
nor the people adopting it had the remotest idea of creating an 
executive with the indefinite powers of George III. 

Hamilton, it is true, openly favored such an executive, but in this 
he stood almost alone. 1 

Luther Martin, in his letter on the Federal convention of 1787 to 
the speaker of the Maryland House of Representatives, stated that 
there were in the convention three parties, to wit, the Monarchists, 
the Federalists, who desired a government based on an equality of the 
States, and members from the more populous States who desired a 
Federal Government in which their States would have an interest 
more or less in proportion to their population. He said that the 
Monarchists, who were hopelessly in the minority, favored a legisla- 
ture and an executive with great and undefined powers, and that for 
a time it seemed as if the members from the larger States would join 
forces with the Monarchists to defeat the Federalists and create an 
executive and a legislature with great and undefined powers, but 
that when Madison, Gerry, and others from the larger States per- 
ceived where their combination with the Monarchists was leading 
them they withdrew, and the Monarchists were defeated. 2 

In the constitutional convention and in the various State conven- 
tions on the adoption of the Constitution we find the powers specifi- 
cally conferred upon the President frequently criticized as too ex- 
tensive. 3 

Had it been supposed that the powers specifically conferred were 
but an enumeration of a few of the many indefinite powers possessed 
by such an executive as the King of England, it is scarcely possible 
that these indefinite powers would have escaped criticism. In fact,, 
the vehemence with which the powers specifically conferred were 
criticized conclusively shows that it was not suspected that the unde- 
fined powers of the English Sovereign were being conferred upon 
the President by the Constitution; for who would have wasted his 
time inveighing against specific powers if it had been supposed that 
the Constitution conferred the extensive and indefinite powers pos- 
sessed by George III? 

The people were told that there was no necessity for a bill of 
rights, for that was only necessary in countries where there were 
monarchs disputing with their subjects about prerogatives and 
privileges. "But," said John Jay, "thank God we have no such 
disputes; we have no monarchs to contend with or demand admis- 
sions from. The proposed government is to be the government of 
the people; all its officers are to be their officers, and to exercise no 
rights but such as the people commit to them." (John Jay's Address 
to the People of the State of New York on the Proposed Federal 
Constitution.) 4 

1 I Elliot's Debates, 350, 351, 352. 

2 Id., 350, 351. 

3 Id., 367; III id., 59, 220, 496-497; IV id., 287; I id., 491. 
* Id., 498. 

S. Doc. 20, 62-1 2 



18 ADDRESSES BY HON. GEORGE W. WICKERSHAM. 

James Wilson and James Iredell both pointed out that the Presi^ 
(Sent possesses no privileges or prerogatives under the Constitution. 

James Wilson, in discussing the commendable features of the Con- 
stitution in respect to the Executive, says : 

* * * Add to all this, that officer is placed high, and is possessed of power 
far from being contemptible ; yet not a single privilege is annexed to his char- 
acter; far from being above the laws, he is amenable to them in his private 
character as a citizen, and in his public character by impeachment. 1 

James Iredell, in the North Carolina convention, uses language 
to the same effect. 2 

Wilson and Iredell were in error in supposing that the President 
was subject to suit as a citizen while in office. The Department of 
Justice recently ruled that the President was not subject to the 
judicial process of any court in the country, and instructed the clerk 
of the Supreme Court of the District of Columbia to refuse to file 
a complaint against the present President. The position was taken 
that the President, being one of the three branches of the Govern- 
ment, could not, while in office, be called into court or subjected to 
its process, it being practically impossible to distinguish between the 
process issued against the President as a citizen and as the Chief 
Executive. 3 

There is some evidence that the framers of the Constitution and 
the people adopting it conceived the powers possessed by the Presi- 
dent, except those relating to foreign affairs, as analogous to those 
possessed by the governors of the several States. 4 

In the North Carolina convention James Iredell, referring to the 
powers of the President, says: 

I believe most of the governors of the different States have powers similar 
to those of the President. 5 

Again, in discussing the propriety of the pardoning power con- 
ferred upon the President, he says: 

Another power that he has is to grant pardons, except in cases of impeach- 
ment. I believe it is the sense of a great part of America that this power should 
lie exercised by their governors. It is in several States on the same footing 
that it is here. 6 

Davie, in the North Carolina convention, in defending the Presi- 
dent's veto power, pointed out that a similar power was possessed 
by the executive of New York. In the congressional debate of 1789 
upon the power of the President to remove officers of the Federal 
Government Mr. Smith said, in answer to the contention that the 
power of removal is executive in its nature : 

* * * I take it that the Constitution of the United States has distributed 
the powers of government on the same principles which most of the State 
constitutions have adopted, for it will not be contended but the State govern- 
ments furnished the members of the late convention with the skeleton of this 
Constitution. 7 

It is true that a majority of Congress were of the opinion that 
the President had power to remove Federal officers, but whether a 

1 I1 Elliot's Debates, 480. 

2 IV Id., 180. 

8 See also State of Miss. v. Johnson (4 Wall., 475, 501). 

* IV Elliot's Debates, 107, 110, 121, 359, 360. 

"Id., 107. 

«Id., 110, 111. 

7 Id., 359. 



ADDRESSES BY HON. GEORGE W. WICKERSHAM. 19 

majority of those Kepresentatives believed he had this power be- 
cause it was executive in its nature is not clear. There is no neces- 
sity for basing this power of the President on anything connoted 
by the term "the Executive power," since it may be implied from 
bis duty to take care that the laws shall be faithfully executed or 
as an incident to his power to appoint officers. 

In Shurtleff v. United States (189 U. S., 311, 318) the Supreme 
Court sustained the power of the President in the absence of con- 
stitutional or statutory provision to remove an officer, even though 
he was appointed by and with the advice and consent of the Senate, 
deriving such power not from anything connoted by the term " the 
Executive power," but from the power of appointment. 

The debates in the State conventions also show that the President 
was looked upon as an officer of decidedly limited powers and by 
some as an officer of insignificant powers. 1 

James Wilson, in the Pennsylvania convention, in discussing the 
President's power, says : 

The objection against the powers of the President is not that they are too 
many or too great; but, to state it in the gentlemen's own language, they are 
so trifling that the President is no more than the tool of the Senate. 2 

In answering this objection Wilson did not contend that the 
President was possessed of great indefinite powers connoted by the 
term " the executive power," but proceeded to enumerate the powers 
specifically conferred upon him by the Constitution, with a view 
to showing that they were by no means insignificant. After dis- 
cussing several of these powers, he says : 

*•-*■• * Must the President, after all, be called the tool of the Senate? I 
do not mean to insinuate tbat he has more powers than he ought to have, but 
merely to declare that they are of such a nature as to place him above expres- 
sion of contempt. 

There is another power of no small magnitude intrusted to this officer. " He 
shall take care that the laws be faithfully executed." 3 

It is evident that both the opponents and the advocates of the 
proposed Constitution looked upon the President as an officer whose 
powers were enumerated. 

The irresistible conclusion from an examination of the debates in 
the State conventions is that the men of that time conceived of the 
Constitution as defining the powers of the President. No doubt the 
majority of them would have conceded that the duties imposed upon 
the President and the powers conferred upon him gave rise to other 
incidental executive powers. Doubtless the majority of them would 
have conceded that the President might protect the property of the 
United States from trespass by force; that he might direct his offi- 
cers to bring suit in case it were taken, etc. ; many, if not most, would 
have doubtless conceded that his duty to take care that the laws of 
the United States were faithfully executed, carried with it the power 
to protect the officers of the law in the performance of their duty. 
But the majority of them would have conceived of these powers as 
growing out of the powers specifically conferred and the duties im- 
posed, rather than springing merely from the general delegation of 
"the executive power." 

The Supreme Court decisions also recognize that for the most part 
the powers of the President result from powers specifically conferred 

1 U Elliot's Debates, 510, 513; Id., 117. 2 Id., 510. 8 Id., 512-513. 



20 ADDRESSES BY HON. GEORGE W. WICKERSHAM. 

upon him by the Constitution, and duties specifically imposed upon 
him by the Constitution, rather than from anything connoted by the 
term " the executive power." 

In the case of In re Neagle (135 U. S., 1, 63, 67, 69) it was held 
that the Executive had the power, independent of any special statute 
to that effect, to protect the judges of the Federal courts in the 
pursuance of their duty. Mr. Justice Miller said : 

We can not doubt the power of the President to take measures for the pro- 
tection of a judge of one of the courts of the United States, who, while in the 
discharge of the duties of his office, is threatened with a personal attack which 
may probably result in his death, and we think it clear that where this protec- 
tion is to be afforded through the civil power, the Department of Justice is the 
proper one to set in motion the necessary means of protection. 

The case of Wells v. Nickles (104 U. S., 444, 447) and the case 
of Brandon v. Ard (211 U. S., 11, 21) illustrate the nature and the 
limits of the executive power. The former decides that the Execu- 
tive (the Secretary of the Interior) may adopt measures to protect 
property of the United States from trespass and depredation; the 
latter, that he can not withdraw the property of the United States 
from the operation of the homestead laws. It is true that this related 
to the power of the Secretary of the Interior over the land of the 
United States, but it would seem equally clear that the President 
has no power to protect the property of the United States from inju- 
dicious legislation. 

As to the powers specifically conferred upon the President, some 
of them are unquestionably self-executing. For example, he may 
exercise his pardoning power whenever a proper case arises, as he 
sees fit. In performing the duties imposed upon him by law, in the 
absence of statutory provisions to the contrary, he may adopt reason- 
able measures to carry them out. So, it has been held, that in the 
absence of a statutory provision to the contrary the Executive 
(Secretary of the Navy) may make the Government responsible for 
services rendered (United States v. Macdaniel, 7 Peters, 1, 14), 
bu1>- 

* * * it is clearly for the court to say whether every duty to be performed 
by an official must be designated by statute, or whether it may not be within 
the power of the head of a department to prescribe regulations for the conduct 
of the business of his office and the custody of its papers, * * *. (Benson v. 
Henkel, 198 U. S., 1, 12.) 

When the Constitution devolves upon the President "the execu- 
tive power," does it not necessarily mean the power to execute the 
provisions of the Constitution itself and of laws and treaties made 
pursuant to its authority? In determining the extent of the powers 
thus conveyed, the principles of the construction of the legislative 
power conferred by the Constitution as expressed in Gibbons v. 
Ogden are equally applicable. 

Let the end be legitimate. Let it be within the scope of the Constitution, 
and all means which are appropriate, which are plainly adapted to that end, 
which are not prohibited, but consist with the letter and spirit of the Consti- 
tution, are constitutional. 

That Congress can not delegate legislative power to the President 
was declared in the case of Field v. Clark (143 U. S., 649, 692) to 
be " a principle universally recognized as vital to the integrity and 



ADDRESSES BY HON. GEORGE W. WICKERSHAM. 21 

maintenance of the system of government ordained by the Con- 
stitution." 

It is thus apparent that the framers of the Federal Constitution 
devised a scheme of representative republican government framed in 
the light of the experience of the ages, with the powers of government 
carefully distributed between three equal and coordinate branches, 
limited and defined in no niggardly spirit, and yet with a restraining 
hand ; each one designed to be a check upon the other, and each one 
confined to its separate sphere, contributing to that harmonious result 
about which the hopes and aspirations of the framers so fondly and 
so confidently clung. They were familiar with the lessons of the 
past ; they knew how impracticable it was to expect all the people to 
wisely and temperately legislate for, still less adminster, the Common- 
wealth, and they carefully devised a practicable scheme of repre- 
sentative government with direct responsibility for the honest and 
intelligent discharge of their duties by the representatives of the 
people. This method of securing the enactment of wise and con- 
siderate legislation they preferred to that of the reference of pro- 
posed laws to the whole body of the people. They were familiar 
with the disastrous results which in the past had attended the latter 
method. They recalled, no doubt, the experience of the Locrians, 
which led to their requiring any citizen who proposed a new law to 
appear in the assembly of the people with a cord around his neck, 
and if the reasons stated by him for his proposed enactment were 
found unsatisfactory that he be instantly strangled. 1 

In his parting advice to his fellow citizens, Washington said : 

Toward the preservation of your Government and the permanency of your 
present happy state it is requisite, not only that you steadily discountenance 
irregular opposition to its acknowledged authority, but also that you resist with 
care the spirit of innovation upon its principles, however specious the pretexts. 
One method of assault may be to effect in the forms of the Constitution altera- 
tions which will impair the energy of the system and thus to undermine what 
can not be directly overthrown. In all the changes to which you may be in- 
vited, remember that time and habit are at least as necessary to fix the true 
character of governments as of other human institutions ; that experience is 
the surest standard by which to test the real tendency of the existing constitu- 
tions of a country; that facility in changes upon the credit of mere hypothesis 
and opinion exposes to perpetual change from the endless variety of hypothesis 
and opinion ; and remember especially that from the efficient management of 
your common interests in a country so extensive as ours a government of as 
much vigor as is consistent with the perfect security of liberty is indispensable. 

1 U Wilson's Works, p. 481. 



THE STATE AND THE NATION. 



AN ADDRESS BEFORE THE CHAMBER OF COMMERCE, 

CLEVELAND, OHIO, AT THE DEDICATION OF THE 

NEW FEDERAL BUILDING, MARCH 20, 1911. 



23 



ADDEESS. 

Mr. Chairman and Gentlemen: 

The dedication to the purposes of its construction of the beautiful 
new Federal building in this city naturally suggests a consideration 
of the relations of the State in which it is placed to the National Gov- 
ernment by which it has been erected. 

Certain agencies of the Federal Government are familiar to all. 
The postal system is so essential to men and women of all classes that 
it is safe to say that, through the post-office establishment, the Gen- 
eral Government touches a larger number of our people than by any 
other agency. Nearly 60,000 post offices, upward of 100,000 clerks 
and letter carriers, besides 17,000 railway postal clerks were required 
in the year 1910 to receive, carry over 448,000 miles of postal routes, 
and deliver an estimated quantity of 14,000,800,000 pieces of mail 
matter, the whole service being conducted at a cost of $229,000,000, 
of which all but $5,848,000 was collected from postage. 1 

The gray uniform of the letter carriers in our cities, and, since the 
establishment of the rural free delivery system, even in country dis- 
tricts, brings home to all classes the existence and the activity of the 
Central Government. Naturally this new building is primarily a post 
office. In a commercial community, which is also a port of entry, the 
collection of revenues for the Federal Government arising from duties 
on imports and from internal-revenue taxes, is perhaps that branch 
of the Federal service which, next to the postal system, reaches the 
greater number of people. Especially is this the case since the enact - 
ment of the corporation tax law which requires of all corporations 
reports of their receipts and disbursements, and the payment into the 
National Treasury of a small annual tax on net earnings. 

But the administration of Federal justice is the most vital agency 
of the National Government, and the provisions in this new building 
for the courts of the United States and their incidental agencies will 
afford conveniences to the increasing number of citizens who have 
to do with those tribunals, as the constitutional power of Congress is 
exercised over a widening range of the subjects to which it. is appli- 
cable. The system of Federal Government under which a separate 
and distinct sovereignty erects its agencies and expounds, adminis- 
ters, and enforces its laws within the States independently of those of 
the States, also in theory sovereign, except where and to the extent 
that they have voluntarily parted with some attribute of sovereignty, 
is at once the admiration and the despair of foreign students of our 
institutions and is often a source of perplexity to ourselves. 

The Constitution of the United States and laws and treaties made 
pursuant to its authority are, it is agreed, the supreme law of the 
land; anything in the constitution or laws of any State to the con- 

1 Report of Postmaster General for 1910, pp. 41, 47, 

25 



26 ADDRESSES BY HON. GEORGE W. WICKEBSHAM. 

trary notwithstanding. But ever since the foundation of the Federal 
Government a constant pressure has developed, first one way, then 
another, State against Nation, Nation against State, to magnify or 
minimize the powers granted to the Federal Government by the Con- 
stitution. 

During the last decade or two there has been a growing tendency 
in the States to call on the National Government for many things 
which are properly within the functions and duties of the States, but 
which, through the extension of certain powers granted to Congress, 
may be also brought within the scope of Federal regulation. 

This tendency has been so marked that at times the States seem to 
have abdicated an important part of their ordinary police powers and 
to have sought to escape their natural responsibilities by devolving 
them upon the General Government. 

The principles regulating the respective powers of State and 
Federal Government are clearly stated by Mr. Justice Harlan in de- 
livering the judgment of the Supreme Court in a very recent case. 

There are, he says, certain fundamental principles which prior 
decisions to which he refers in his opinion recognize, and — 

which are not open to dispute. * * * Briefly stated, those principles are: 
That the Government created by the Federal Constitution is one of enumerated 
powers, and can not, by any of its agencies, exercise an authority not granted 
by that instrument, either in express words or by necessary implication ; that 
a power may be implied when necessary to give effect to a power expressly 
granted ; that while the Constitution of the United States and the laws enacted 
in pursuance thereof, together with any treaties made under the supreme law 
of the land, a State of the Union may exercise all such governmental authority 
as is consistent with its own constitution, and not in conflict with the Federal 
Constitution ; that such a power in the State, generally referred to as its police 
power, is not granted by or derived from the Federal Constitution but exists 
independently of it, by reason of its never having been surrendered by the State 
to the General Government; that among the powers of the State, not sur- 
rendered — which power therefore remains with the State — is the power to 
so regulate the relative rights and duties of all within its jurisdiction so as to 
guard the public morals, the public safety and the public health, as well as to 
promote the public convenience and the common good ; and that it is with the 
State to devise the means to be employed to such ends, taking care always that 
the means devised do not go beyond the necessities of the case, have some real 
or substantial relation to the objects to be accomplished, and are not incon- 
sistent with its own constitution or the Constitution of the United States. 1 

That these principles have not been always clearly perceived is 
illustrated by the history of the State of Ohio — not to mention other 
States^ 

In the ordinance of July 13, 1787, providing for the government 
of the northwestern territory certain articles were formulated as 
" articles of compact between the original States and the people and 
States in the said territory " for the purpose of " extending the fun- 
damental principles of civil and religious liberty, which form the 
basis wherein these republics, their laws, and constitution are erected ; 
to fix and establish those principles as the basis of all laws, consti- 
tutions, and governments which forever hereafter shall be formed in 
the said territory." These articles, it was declared, should " forever 
remain unalterable, unless by common consent." 

These articles in effect embodied those fundamental principles of 
civil liberty which have been the woof and fabric of Anglo-Saxon 
institutions since they were first set forth in Magna Charta, princi- 

* House v. Mayes (219 U. S., 270, 281). 



ADDRESSES BY HON. GEORGE W. WTCKERSHAM. 27 

pies which were also formulated in the first 10 amendments to the 
Constitution of the United States, adopted in November, 1791. 
The ordinance further provided that — 

The navigable waters leading into the Mississippi and St. Lawrence and the 
carrying places between the same shall be common highways and forever free 
as well to the inhabitants of the said territory as to the citizens of the United 
States and those of any other States that may be admitted into the confederacy, 
without any tax, impost, or duty therefor. 

Freedom of trade and commerce was a matter of the utmost con- 
cern on the part of the great men who framed this ordinance and 
the Constitution of the United States, and the Jay treaty of 1794 
secured to the subjects of both Great Britain and the United States 
the right — 

freely to pass and repass by land or inland navigation into the respective ter- 
ritories and countries of the two parties on the continent of America (the coun- 
try within the bounds of the Hudson Bay Co. only excepted), and to navigate 
all the lakes, rivers, and waters thereof, and freely to carry on trade and com- 
merce with each other. 

The ordinance of 1787 made provision for the erection of States 
out of the territory to which it applied whenever any of such States 
should have 60,000 free inhabitants, provided the permanent consti- 
tution and State government which they should form " shall be re- 
publican and in conformity to the principles contained in these 
articles." 

That portion of the articles which dealt with the government of 
the Territory provided for the appointment of a court to consist of 
three judges with common-law jurisdiction and whose commissions 
should continue in force during good behavior. Among the provi- 
sions which were declared to be unalterable save by common consent 
was that — 

The inhabitants of said Territory shall always be entitled to the benefits of 
the writ of habeas corpus and of the trial by jury, of a proportionate repre- 
sentation of the people in the legislature, and of judicial proceedings according 
to the course of the common law. 

The principles of government embodied in the Federal Constitu- 
tion, adopted in 1789, were a distribution of powers among three 
separate coordinate branches — legislative, executive, and judicial — 
the legislative power to be exercised by Representatives of the people 
and Senators representing the States, with the concurrence of the 
President, except when exercised by two-thirds of each House of 
Congress despite a presidential veto. The executive officers were to 
be chosen for definite terms and during such terms to be free from 
interference by either of the other branches of government save when 
impeached for high crimes or misdemeanors; and the judicial power 
was to be exercised by judges holding office during good behavior and 
free from interference or control by the other branches of govern- 
ment. An independent judiciary was regarded by the framers of 
the Constitution as absolutely essential to the success of the Govern- 
ment created by it. 

Pursuant to the provisions of the ordinance, a constitution was 
adopted and the State of Ohio was admitted to the Union on March 
1, 1803. Those who prepared that constitution had before them as 
models and guides the ordinance for the government of the North- 
western Territory, the Constitution of the United States, and the 



28 ADDRESSES BY HON. GEORGE W. WICKERSHAM. 

Jay treaty. But they were unable to grasp the wisdom embodied in 
those famous documents. 

Rufus King, in his sketch of the history of Ohio, says of this 
constitution : 

It was framed by men of little experience in matters of state, and under 
circumstances unfavorable to mucb forecast. With such a model of simplicity 
and strength before them as the national Constitution, which had just been 
formed, the wonder is that some of its ideas were not borrowed. It seems to 
have been studiously disregarded, and Ohio, as well as some States farther 
westward, which her emigrant sons, with filial regard, induced to follow her 
example, has suffered ever since from a weak form of government, made up in 
haste and apparently in mortal dread of Gov. St. Clair. * * * Briefly 
stated, it was a government which had no executive, a half-starved, short-lived 
judiciary, and a lopsided legislature. 1 

The student of American history must constantly wonder at find- 
ing so often developed a hostile attitude toward the establishment of 
an independent judiciary. Disputes which can only be settled by the 
arbitrament of independent and incorruptible judges constantly arise 
between citizens, between States, between a State and the Nation. 
The existence of a standing body of judges — men of learning and 
character, withdrawn from the ordinary pursuits of business life, and 
independent of all influences which might warp their judgment and 
prevent them from reaching a decision based only upon a fair and 
unbiased consideration of the law as applied to the evidence in the 
case — would seem to be of such obvious advantage to every member of 
the community that no argument were needed to demonstrate it. 

Yet in the early history of Ohio, as in the later history of some of 
our present States and Territories, from time to time waves of feeling 
hostile to the judicial establishment arise, generally originating in 
the resentment of some class of the community to judicial decisions 
which prevent that particular class from carrying out schemes for 
its own advantage to the detriment of the rest of the community. 

The latest invention of self -characterized " progressive " govern- 
ment — the recall of judges by legislative or popular vote for making 
an unpopular decision — was, in effect, resorted to in Ohio in 1809, as 
a means of punishing the common-pleas judges who had ruled that 
an act of the legislature granting to justices of the peace jurisdiction 
to try suits for any amount not exceeding $50 without a jury was a 
violation of the right of trial by jury secured by the seventh amend- 
ment to the Constitution of the United States in all suits at common 
law where the value in controversy shall exceed $20. 

Although this decision was affirmed by the supreme court of the 
State, an effort was made to impeach the judges who rendered it, and 
when this failed, resort was had, as Rufus King states in his history 
of Ohio, " to a more efficacious course " : 

The term of office was seven years, and the term of seven years since the State 
constitution went into operation was just expiring. Most of the judges had 
been chosen much later, either as new appointments or to fill vacancies. It was 
resolved by the majority in both branches of the assembly that their terms 
of office must all be limited by the original term of those who had been first 
appointed. The three supreme judges, three president judges of the common 
pleas, all the associate judges of that court, more than a hundred in number, 
and all the justices of the peace, were discharged at a swoop. 2 

The history of Ohio furnishes no repetition of such an attack on 
the independence of the judiciary as this, but it was many years 

iOhio, by Rufus King. Houghton, Mifflin & Co., 1903. 
« Id., p. 314. 



ADDRESSES BY HON. GEOEGE W. WICKEESHAM. 29 

before the courts recovered from the effects of the blow. Not, indeed, 
until after the decision by the Supreme Court in 1887, that it was 
empowered and in duty bound to declare a law invalid if not passed 
in due constitutional form, did the judiciary of Ohio take the place 
which that branch of the government must occupy, in order that 
republican government as it is was understood by the framers of 
the Constitution of the United States may be accomplished. 

Ohio, in common with many of the other States, had her experi- 
ence in resisting the supremacy of the Constitution of the United 
States and laws and treaties made in pursuance of it. In 1819 she 
undertook to impose a tax on each of the two branches of the United 
States Bank, and Osborn, the auditor of state, summarily took from 
one of the branches a sum of money large enough to cover the tax on 
both. He was advised by counsel that as the State could not be sued 
by the Nation he was secure from Federal redress. 

But the supremacy of the National Government was declared and 
the insufficiency of Osborn's defense demonstrated in an opinion by 
Chief Justice Marshall, which is one of the great landmarks of con- 
stitutional law. The act of the Legislature of Ohio under which 
Osborn proceeded was declared to be in conflict with the Federal 
Constitution and therefore void. Consequently Osborn's act was 
not the act of the State; he was a mere trespasser, and as such 
amenable to the process of the Federal court. (Osborn v. U. S. Bank, 
9 Wheat., 938.) In later years Ohio came to play so conspicuous a 
part in the counsels of the Nation that all traces of jealousy of 
Federal supremacy completely disappeared. 

A State that furnished two Chief Justices 1 and five Associate 
Justices of the Supreme Court ; 2 which has succeeded Virginia as the 
mother of presidents, seven 3 of her sons having been elected Chief 
Magistrates of the Nation and two Vice Presidents; 4 a State which 
gave so generously of her sons and her treasure to save the Union 
from disruption can never fail to be the stanchest upholder of na- 
tional authority. 

The sons of Ohio have written large their names in the history of 
the Nation. Not until the names of Wade, Chase, Ewing, Grant 
Sherman, Sheridan, McPherson, Buell, Eosecrans, McDowell, Gil- 
more, Cox, McCook, Garfield, McKinley, Day, the elder and the 
younger Taft shall have faded from the memory of men can the 
people of Ohio cease to be zealous and loyal defenders of the na- 
tional institutions established by the Constitution of the United 
States. 

Representative republican government is founded upon a practical 
recognition of the facts that in a busy, prosperous community the 
average citizen can give but little time to the details of his Govern- 
ment. He therefore joins with his fellow electors in selecting 
representatives to frame the laws by which he is to be 
governed and in choosing the principal officers who are to 
execute them. His life, liberty, and property are protected 
from undue invasion by either branch of the Government by means 
of constitutional restrictions upon their powers, and by limit- 



2 McLean, Swayne,' Matthews, Day ; and Woods, born in Ohio, appointed from Georgia. 
8 William Henry Harrison, Grant, Hayes, Garfield, Benjamin Harrison, McKinley, and 
Taft. 

* Hendricks and Fairbanks. 



30 ADDRESSES BY HON. GEORGE W. WICKERSHAM. 

ing the terms for which they are chosen there is required of repre- 
sentatives and agents a periodical account of their stewardship. 
This system secures to all freedom from undue interference during 
their terms of office, thus giving them time to work out any given 
problem and to submit it to the test of experience before it is con- 
demned. The most beautiful work of the most skilled artisan pre- 
sents a crude and unlovely appearance, which promises anything 
but perfection, at some stage of its production, and if the capacity 
of its author and the value of the work were determined at that 
time neither artisan nor the work could ever win approval. Abuses 
of power occur under all forms of government. 

The Representatives chosen to make laws for State or Nation 
have not been always faithful to their trust. The greater impor- 
tance of the National Legislature, upon which the eyes of the Nation 
are directed, has, as a rule, preserved it from the corruption and 
the inefficiency of many of the State legislatures. The history of 
the latter has been too often a history of venality and stupidity. 
But is the remedy to be found in the overthrow of the whole system 
of representative government? If the head of a large commercial 
establishment should discover that his clerks and officials have dis- 
obeyed his instructions, stolen his money, and impaired his fortune, 
would he mend the case by undertaking to do all their work him- 
self or by so hampering his new employees with restrictions and 
penalties and threats of instant dismissal for departure from rules 
that their only certainty in not offending would lie in doing 
nothing? Can public business be carried on by a system based on 
distrust any better than private business can be successfully so 
conducted? Is not the remedy to be found rather in greater care 
in the selection of agents and the more rigid enforcement of their 
responsibilities? Political and social reformers alike are prone to 
advocate the overthrow of a system rather than the more difficult 
task of selecting fit agents to conduct the system and of the bringing 
of unjust stewards to account. 

How can any man who gives the subject a moment's reflection 
view with indifference any interference with the dignity and inde- 
pendence of the judiciary? What are judges but impartial arbi- 
trators, to whom any one of us may be compelled at any moment 
to turn for protection of life, limb, or property? What will become 
of that protection if our system of government should subject him 
to the despoiling rage of the mob when he asserts the supremacy 
of law in the face of unjust clamor? Who of us will be secure in all 
that we hold dear if our judges can only retain their places by con- 
sulting the passing fever of the crowd, instead of the laws of the 
land? A glib, cheap answer is made by the advocates of the de- 
struction of representative government when objection is made to 
their schemes : " You do not trust the people," they say. On the 
contrary, it is they who do not trust the people. Their whole pro- 
gram is based on the assumption that the people are unfit or unable 
to choose honest and faithful representatives, and therefore that 
those whom they do select must be fettered with minute instructions, 
deprived of any freedom of action, subject to recall, and to be cast 
out at once if they do not photograph into instant action every 
passing wave of popular feeling which may be worked up as a 
result of misinformation or inflamed prejudice. Under such a sys- 



ADDRESSES BY HON. GEORGE W. WICKERSHAM. 31 

tern the people abandon all self-restraint and the necessity of sober 
second thought, based on accurate information and thorough discus- 
sion, before condemning their servants. It would seem an affront 
to the intelligence of an Ohio audience to suggest even the possi- 
bility of such a change in the nature of our governments, State or 
National, were it not that in some of the western States and Terri- 
tories such theories have already found expression in constitutions 
and laws; and even in our eastern States there are not lacking 
those who have seized upon those notions as a gospel which is to 
bring salvation to a people sitting in darkness. 

Indeed, these ideas seem to have gained such currency in some parts 
of the country that one is tempted to exclaim, in the language of 
James Russell Lowell : 

Is this the country that we dreamed in youth, 

When wisdom and not numbers should have weight, 

Seed field of simpler manners, braver truth, 

Where shams should cease to dominate 

In household, church, and state? 

But if we reflect on the history of our country, we must realize 
that its people are " the heirs of wise traditions, widening cautious 
rings," and that they have never yet as a Nation proved unworthy of 
their birthright. 

No discussion of the work of the Federal Government in its rela- 
tion to this State would be complete without a reference to the com- 
merce of the lakes. The last sound of hostile cannon ever heard 
on Lake Erie died away at 4 o'clock on the afternoon of September 
10, 1813, when Commodore Perry sent to Gen. Harrison that never- 
to-be-forgotten message, " We have met the enemy and they are ours." 
Four years later the two nations — no longer enemies, but friends- 
agreed that each should maintain on Lake Ontario one vessel of not 
exceeding 100 tons burden, armed only with one 18-pound cannon, 
and on the upper lakes two vessels of like tonnage and armament, 
and that all other armed vessels on the lakes should be dismantled 
and no other vessels of war be there armed or built, A series of 
treaties and conventions, beginning with the Jay treaty of 1794, has 
secured to the two peoples the right freely to navigate all the lakes 
and waters lying between them, and to carry on trade and commerce 
with each other. The growth of commerce on these waters since the 
first voyage of the steamer Walk-in-the-Water, in 1818, has passed 
the bounds of moderate expression. The total gross tonnage of the 
American mercantile marine for the year 1909 registered at all 
Atlantic and Gulf ports was 3,500,394 tons, and at the lake ports 
2,782,481 tons. The registered tonnage passing through the Sault 
Ste. Marie Canal the same year was upward of 46,000,000 net tons. 
At the port of Cleveland alone 1,607 foreign vessels entered and 
1,929 were cleared during the fiscal year 1909-10, and 6,696 coastwise 
vessels entered and 6,467 cleared. 

This vast commerce is the result of freedom of navigation of these 
waters. Our neighbors to the northward are of common origin with 
us. They speak our language, have a similar form of government, 
and pursue like ideals. They share with us the great waterways that 
bear our increasing commerce from the Northwestern States to the 
sea. Not a single armed fortification is to be found along the 3,000 
miles of boundary between us. No commercial restrictions impede 
our common use of the great waterways. Only a vexatious revenue 



32 ADDRESSES BY HON. GEORGE W. WICKERSHAM. 

tariff burdens the exchange of trade and commerce between us. The 
aggregate amount of Canadian products is not large. The amount 
of duties collected by us upon them is inconsiderable; the amount 
collected by Canada upon our exports to her shores is trivial. Her 
labor is of the same character as ours. No principle of protection 
to our home industry is therefore involved in establishing the great- 
est freedom of trade and commerce between the United States and 
Canada. As the freedom of navigation of the Lakes has brought 
wealth and prosperity to both peoples, so must the inevitable freedom 
of commerce between us result in closer intimacy between our peoples 
and greater gain to each. The nations will sooner or later bring 
about this freedom of trade betwen them, and the great State of 
Ohio, with its lake ports, will be immensely the gainer. A decade 
will not elapse after this shall have been established when men 
would no more go back to the present system than the people of 
Ohio would desire to establish a protective tariff on importations 
from Indiana or Michigan. 

The welfare of the States is bound up in that of the Nation. Sta- 
bility of government, a wise conservatism, which does not lightly cast 
off the institutions under which we have greatly prospered because 
of passing abuses — these things are essential to domestic happiness 
and prosperity as well as to the continuance of peaceful, friendly, 
and profitable relations with our neighbors. The constant loyalty of 
the people of Ohio and their interest in national affairs will con- 
tribute much to the attainment of this result. The days of isolated 
national life are past. We can no longer look at our next-door neigh- 
bors as aliens or strangers. Their interests are in large measure bound 
up with ours. In the continued and closer union of the Anglo- 
Saxon peoples lies the world's best hope for its continued peace and 
prosperity. 



REMARKS OF ATTORNEY GENERAL AT ANNUAL 

BANQUET OF THE DAILY PRINCETONIAN, 

PRINCETON, N. J., MAY 1, 191 1. 



S. Doc. 20, 62-1 3 33 



ADDRESS. 



Mr. Chairman and Gentlemen or the Class of 1911 : 

I assume that when you invited me to be your guest this evening 
you expected me to talk to you about the relations of college men to 
public questions. As one busied in the tremendously important and 
equally absorbing business of government, I am greatly interested in 
meeting you who are coming out into the workaday world to assume 
your share of the duty and the privilege of making efficient the con- 
duct of our public affairs, municipal, State, and national. 

To be truly efficient, a government must be administered honestly 
and wisely. How these results shall be accomplished, you and men 
like you should in large measure determine. If you do not play an 
important part in the solution of this problem, then whatever "pro- 
ficiency you may have attained here in your studies, whatever prowess 
you may have displayed in athletic sports, you will have failed to 
realize the highest aim of university education. 

I congratulate you on coming out into the world at this particular 
time in its history. Within your grasp is life, and life abundantly. 
In the words of the Psalmist, your feet are planted in a large room. 
The world is all before you, where to choose. When your fathers 
were graduated at the university thirty-odd years ago the thoughts 
of the people were centered principally upon industrial and busi- 
ness activity. The railroads were opening up the great western 
county for development ; mining and manufacture were being stimu- 
lated by new inventions and increased facilities of transportation, 
leading to cheapened production and improved product; and the 
rapid progress in facilities of intercommunication of thought were 
bringing the ends of the earth into closer touch with each other. 
The surplus population of Europe poured into our country, and 
brawny arms from many lands developed our mines and carried 
on the work of our factories. Plenty was scattered over a smiling 
land. The way was open for everyone. If the older communities 
were too crowded, there was room for all in the great West. In- 
dustry and enterprise and intelligence found ample scope; wealth 
was garnered in many fields. The power of cooperation and or- 
ganization in the conduct of business has been applied during the 
past 30 years to an extent never before dreamed of. Men learned 
then how far-reaching a control over industry and commerce could 

35 



36 ADDRESSES BY HON. GEORGE W. WICKERSHAM. 

be effected through organization. Commercial empires were formed. 
Great fortunes were amassed in the hands of a few, but prosperity 
came also to many. What wonder that materialism became rampant 
and that the golden calf was erected for worship in the market 
places. 

But the vision of truth and justice has never wholly failed before 
the eyes of the American people, and in the full flush of their high- 
est prosperity they heard the voice of the national conscience remind- 
ing them that righteousness alone exalteth a nation. In the period of 
their greatest material progress they paused to consider whether 
their institutions were securing justice between man and man. 

The laws of State and Nation alike during this period of great 
industrial progress were molded to facilitate the conduct of business 
on a colossal scale. There was nothing more natural. They met the 
needs of the hour. True, they went beyond those needs, and, in so 
doing, they aroused the people to a recognition of the fact that they 
had gone too far. In the triumphal progress of expanding industry 
and accumulating wealth the rights of individuals and of classes of 
individuals who had but an humble share in it, were not always con- 
sidered. Here and there occasional peaks of garnered riches rose high 
above the plain, and like the robber barons of the Rhineland, great 
masters of capital sat enthroned upon them. But their very height 
lifted them up where all men could see and begin to question how 
they came there, and whether it was for the common weal that such 
inequalities of condition should exist. 

So to-day the great question confronting you as you enter upon the 
drama of matured life is to find the means of maintaining the true 
balance between the freedom which the individual citizen must 
enjoy in order that he may justly prosper, and the protection of 
the mass of the people from unjust discrimination in favor of the 
few. 

In a country whose government is based on manhood suffrage, any 
abuse can continue only until a majority of the people are convinced 
that it is wrong. Then there is bound to be a change. But whether 
or not the change proposed to remedy the evil is a wise one and will 
not result merely in jumping out of the frying pan into the fire, 
depends upon whether or not the remedy is sufficiently discussed to 
be thoroughly understood. The first popular impulse to right a 
wrong often results in committing another wrong. It is in putting 
clearly before the people the nature of civic ills, and the character 
and effect of proposed remedies, that men who have had the benefit 
of systematic university training may best justify their advantages. 

Public attention has been and is now focussed on these wrong 
tendencies. Recognizing the existence of evils, two classes of reme- 
dies are presented. One class deals with forms of government and 
new rules of conduct, another class addresses itself to a consideration 
of the character of the men who make our laws and carry on our 
public affairs. It is characteristic of our race that we are more prone, 
in the face of civic ills, to the making of new laws rather than to 
securing a better class of public servants. We pass laws very much 
as the Chinese buy a paper prayer and hang it up to placate their 
gods. A common expression on many lips is there ought to be a law 
about that." We are in truth a law-ridden people ; and this tendency 



ADDRESSES BY HON". GEORGE W. WICKERSHAM. 37 

is encouraged and stimulated by those who seek popular favor by 
pointing to easy remedies for obvious ills. Not satisfied with the 
ever swelling volume of statute laws, we are now urged to tinker 
with our constitutions. There is nothing new in this kind of dema- 
goguery. Momsen, writing of the Rome of Cato's time, says : 

In reality these demagogues were the worst enemies of reform. While the 
reformers insisted above all things and in every direction on moral amendment, 
demagogism preferred to insist on the limitations of the powers of the govern- 
ment and the extension of those of the burgesses. 

. So in our own day there is much clamorous advocacy of measures 
to limit the powers of those charged with the administration of our 
highly complicated Government, and to increase the direct interven- 
tion of the public in the conduct of its operations. _ 

The idea that a busy, prosperous, commercial people will, or can, 
make or administer laws better than representatives chosen from 
among the people for the purpose, is one that is almost as old as 
recorded history, and all recorded history proves its fallacy. But 
it is said that in the workings of representative government repre- 
sentatives do not represent the people. I believe that to be a super- 
ficial comment. Representatives have and, being human, always will, 
from time to time fail in their duty; but in the long run our repre- 
sentative bodies must and do give expression to precisely what the 
matured thought of the majority of the people demands. They may 
not yield at once to a spasmodic and artificially stimulated emotion 
induced by one particular class of society for its own ends as against 
all other classes. God forbid that they should ! But they are in- 
evitabty controlled by the deliberate thought-out will of the people. 
Impatient reformers, • desirous of securing the prestige of immediate 
success in the advocacy of their nostrums maj chafe at delays. But 
you who have had the advantage of learning the lessons of the past, 
will, I am confident, lend your influence to the maintenance of a 
system of government which protects the legitimate interests of a 
commercial people from destruction by the sudden gusts of popular 
passion. You will carefully examine existing laws and institutions 
before lending your aid to their overthrow. No system of law can 
be devised that will automatically work good. All laws must be ad- 
ministered by human agencies. The best human agencies can only be 
secured by attaching confidence and honor and dignity to the office. 
A few laws easily understood are of more value than a thousand 
laws impossible of comprehension. Remember the advice that Don 
Quixote gave to Sancho Panza for his guidance in the government of 
the island of Barateria : 

Make not many proclamations ; but those thou makest take care that they be 
good ones, and above all that they be observed and carried out ; for proclama- 
tions that are not observed are the same as if they did not exist ; nay, they 
encourage the idea that the prince who had the wisdom and authority to make 
them had not the power to enforce them ; and laws that threaten and are not 
enforced come to be like the log, the king of the frogs, that frightened them at 
first, but that in time they despised and mounted upon. 

It will be many a day before our people as a body can lay aside their 
business occupations and meet in the market places, like the Atheni- 
ans, to debate on matters of public concern, and to enact into law or 
executive order the result of their deliberations. Industry and com- 



38 ADDRESSES BY HON. GEORGE W. WICKERSHAM. 

merce will long continue to engross the attention of the majority. 
As education continues to be widespread, the people will continue to 
take an active, intelligent interest in public affairs. But the business 
of governing a highly complex modern civilization, to be conducted 
with the best results to the greatest number of the people, will always 
require the absolute devotion and entire attention of an increasing 
number of men. Temporary abuses may be corrected, but effective 
government can not be conducted through the spasmodic interven- 
tion of popular uprisings. You can not expect to secure competent 
men for the conduct of public affairs if they are to be commissioned 
as untrustworthy, subjected to constant heckling and misrepresenta- 
tion, and turned out branded as unfaithful servants at a moment's 
notice for temporarily unpopular acts. 



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